Posted on 06/19/2020 6:14:48 AM PDT by marktwain
The First District Court of Appeal, State of Florida, on 29 May, 2020, found merely noticing a person had a concealed handgun was not sufficient reason to stop and search them. It was not sufficient probable cause to investigate the situation further under Florida law.
Here is a summation of what happened, according to the First District Court of Appeal. From 1dca.org:
Deputy Beach parked and approached the truck in order to discuss the license plate cover with the driver and to give him a verbal warning about the license plate cover. According to Deputy Beach, he “was just going to have a talk, it wasn’t — it really wasn’t even investigatory at that point.” As Deputy Beach was approaching, the appellant got out of the truck holding a knife. When the appellant saw the deputy, he placed the knife on the front seat of the truck and raised his hands. When he raised his hands, Deputy Beach saw the butt of a handgun sticking out of the appellant’s waistband. The deputy then “closed the distance and put [his] hands on him and kind of guided him up against the vehicle and began to detain him.” After the appellant was handcuffed, placed in the back of the deputy’s patrol car, and read the Miranda1 warning, the deputy asked the appellant if he had a concealed-weapons license, and the appellant responded in the negative. The appellant was then arrested for carrying a concealed weapon without a license in violation of section 790.01, Florida Statutes (2017). According to Deputy Beach, at the time of the appellant’s initial seizure, “other than the firearm, [he] had no reason to detain him at that point.”
The only probable cause given for the detention and search was the presence of the concealed firearm. Over 40 years ago, I had been taught, as a newly minted officer, that searching someone I suspected had a weapon, was always acceptable. I was told no judge would refuse to prosecute a case where a weapon was found. The weapon itself would be proof the search was warranted.
That was several decades ago. Concealed carry was illegal in Wisconsin. Permits were only available in a few states, and difficult to obtain.
The nation has come a long way toward restoring Second Amendment rights. The First District Court of Appeal in Florida referenced the Pennsylvania Supreme Court in Commonwealth v. Hicks decision from 31 May, 2019. In Hicks, the Pennsylvania Supreme Court said the mere presence of a concealed weapon was not probable cause for a stop and search. There have been similar decisions in Kentucky and Washington state.
This was decoded a long time ago, how did it even get this far? If it is legal to carry a firearm it can NOT be used as justification to make contact.
Answer: governments tend to accumulate power, plus racism, powered by progressivism.
Actually it was normalized in 1791. LOL! Sadly the “You’ll shoot your eye out!” crowd somehow got in control and started infringement procedures. :-) But, I did spot an item I’ll post shortly.
That in itself is harassment. And the cops wonder why people are fed up with their overzealous policing.
Cops have to understand that yes they are to enforce the laws but need good judgment. Just because they are LEO’s does not mean they are Gods.
The law has definitely swung in the direction of right to keep and bear, but the law can still be confusing. I’m a little confused here. If the individual had no CC permit, but was carrying CC and then revealed that to the officer, why would it not at least be an infraction? Guy gets out of a car on a routine non-investigative stop and has a knife and a gun. The guy might be fine or he might be a dirt bag, I dont know, and neither does the officer. Seems like determining the legality of his carrying is reasonable.
The police have made it their #1 priority to search everyone for drugs. If you have a faulty license plate cover, a turn signal out, a cracked turn signal lens, a cracked windshield, a covid mask hanging from your windshield, if your window tint is 1% over allowable, if you are going 6 mph over the speed limit, if you don’t signal a lane change or any other tiny minor infraction, they will stop you and search you and the car for drugs.
Time was you would get a ticket and be sent on your way. No more. Now it’s “license and registration, sir. Do you have any illegal weapons or drugs in the car? Please step out of the car so I can search you for weapons in the name of officer safety.”
In all cases, they are searching for drugs.
I hate modern policing. I really do. When they aren’t violating the letter of the US Constitution, they are violating the spirit of it.
I hate it.
If the cop saw the gun how can he claim it was concealed?
It would be legal probable cause.
I must have mis-read the story. The dude got out of his truck with a knife in his hand. That is justification for the search for weapons (the cop also could have simply shot him dead)...
“Please step out of the car so I can search you for weapons in the name of officer safety.”
In all cases, they are searching for drugs.
I hate modern policing. I really do. When they aren’t violating the letter of the US Constitution, they are violating the spirit of it.
I hate it.”
You watch too much TV. The officer cannot search a vehicle without probable cause. If they smell pot, that is probable cause. They need probable cause or consent to search. Maybe you see a lot of drug searches because there are so many drugs around and idiots driving around with dope in their car.
“Please step out of the car so I can search you for weapons in the name of officer safety.”
In all cases, they are searching for drugs.
I hate modern policing. I really do. When they aren’t violating the letter of the US Constitution, they are violating the spirit of it.
I hate it.”
You watch too much TV. The officer cannot search a vehicle without probable cause. If they smell pot, that is probable cause. They need probable cause or consent to search. Maybe you see a lot of drug searches because there are so many drugs around and idiots driving around with dope in their car.
No, it is not. Not even close.
It is perfectly legal to possess weapons, in nearly all states.
It is one of the things this decision clarified.
Mere possession of weapons is not a cause to stop and search, in most places.
A few states ignore the Second Amendment by making possession of weapons illegal in most public places.
Probable a plastic cover over the plate which is not allowed. Not the plate frame - but a covering over the whole plate. Seems that traffic cameras cannot read throught the cover...
Maybe because Terry V Ohio et al pretty clearly indicate the mere presence of a firearm, absent any reasonable suspicion or probable cause, is not “articulable and reasonable means to conduct a search”. No cause to search, no authority to , well, interact with a person.
Modern assumption, absent reasonable suspicion that a crime has been, will be or is about to be committed, dictates that police have no reason to question the presence of a firearm.
Because it was concealed till the guy raised his hands and his shirt came up.
Lol...sure wasn’t concealed enough.
Would the cop know he had a concealed weapon if he hadn’t raised his hands.
No
I am guessing that, like my state, carrying laws are codified in the Florida state law, but I havent looked for Florida.
I am not sure of your point.
The officer would have to know the person did not have a permit.
Not easy to know until you have asked.
This case says there is no reason to ask, unless a crime is reasonably suspected.
A concealed carry would never have been seen, thus no concern on the officers part. But as soon as it was unconcealed, it now becomes an issue whether he has a permit or not.
The laws may vary state to state, but where I am at, if I wind up showing when I am concealed carrying with my permit, I may have just violated the agreement I have with my local sheriff in use of the permit and my permit could potentially be revoked. Now there are also places in my state where open carry is legal. So maybe I am not in hot water with the Sheriff, but it depends on the situation. Not sure about this Florida case. However, once I have revealed a gun, and it was apparent that I was previously concealed, the officer can ask if I have a permit and I am required by law to present it to him if asked.
Not a lawyer here, but if I did not have a permit, and I was carrying concealed, and ‘got caught’ as in this case, then I would be in violation of state codes and subject to arrest.
Did I answer your question?
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